If the Hillary Clinton email scandal wasn’t a clear enough lesson that one should not conduct “official” work using personal electronic communication tools (be it personal email, texts or other methods), a number of recent court decisions have required executives to produce communications from their personal accounts and devices. Executives and advisors should not assume that communications using methods other than corporate email will somehow be protected or otherwise not find the light of day in the event of a dispute or investigation.
Part 3: Reform To Canadian Access to Information
As a follow up to Part 1, we report that the Government of Canada is in the process of amending the Access to Information Act and is considering potential reform which may have an impact on businesses. In its Review of the Access to Information Act, the Standing Committee on Access to Information, Privacy and Ethics recommended, among other things, that the Act should apply to institutions that are publicly funded by the Government of Canada. There are three potential options suggested to determine whether an institution would be subject to the Act under the proposed reform.
The Information Commissioner of Canada (Commissioner) has proposed the following three options to determine whether an institution that is funded by the Government of Canada should be subject to the Act under the proposed reform:
- if the institution receives a loan, grant or contribution of $5 million or more;
- if the source of 50% of the institution’s funding originates (directly or indirectly) from the Government of Canada, and
- if the institution’s income from the federal government reaches a certain percentage or an absolute threshold higher than $5 million of public funding.
According to the Commissioner, the criteria in option A is proposed to include expenditures, grants and contributions equal to or in excess of $5 million which are voted on by Parliament as separate line items in the Federal budget. The criteria in option B is proposed as it is the method used in both Denmark and Serbia. The criteria in option C is proposed as it is a middle ground or saving grace between options A and B.
Part 2: US Government – Freedom of Information
In Part 1, we discussed access to information requests in Canada.
In the United States, businesses that interact with the federal agencies as defined in the Freedom of Information Act may be similarly subject to a freedom of information (FOIA) request. A FOIA request compels the federal agency to disclose records in its possession should any person make a formal request. As such, a FOIA request may be used in the United States to gain information about competitors.
The goal of the Act is to encourage accountability through transparency. Under the Act, any person, regardless of citizenship or residency, has the right to request access to federal agency records. The Act defines “agency” as any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency. The Act defines “records” as any information that would be an agency record maintained by an agency in any format, including an electronic format; and any information maintained for an agency by an entity under Government contract, for the purposes of records management. Any record that a federal agency creates or receives in relation to a business may be subject to a FOIA request, regardless of whether the records contain sensitive, confidential, or proprietary information.
Each state has its own FOIA legislation that applies to state agencies. State agency obligations and exemptions can vary and may be more onerous than the federal Act, as such, different considerations and safeguards may apply.
FOIA applies to only records that are in the possession of federal agencies, not information. Therefore, images viewed, but not copied or downloaded, are not subject to FOIA disclosure (emails are considered records subject to FOIA disclosure). An information sharing systems that does not allow for copying or downloading of information, may be used to protect information, however, any notes related thereto may be subject to disclosure.
Part 1: Canadian Government – Access to Information
This is the first part of our series reporting on the potential for companies to seek access to information about business competitors held by governments in Canada and the United States.
In Canada, businesses that interact with Government Institutions as defined in the Access to Information Act may be subject to an access to information (ATIA) request. An ATIA request requires Government Institutions to disclose the records submitted to or created by the Government Institutions, even if held only temporarily. As such, an ATIA request may be used in Canada to gain information about competitors.
Pursuant to the Act, any person who is a Canadian citizen or a permanent resident of Canada has a right to, and shall, on request, be given access to any record under the control of a Government Institution. The Act defines “Government Institution” as any department or ministry of the Government of Canada or any parent Crown corporation or its wholly owned subsidiaries, as listed in Schedule 1 to the Act. The Act defines “records” as any documentary material, regardless of the medium or form. The term record captures any machine readable record (such as email and text messages) and any physical medium that can be written or etched upon.
Each province has its own ATIA legislation that applies to provincial institutions. Provincial institution obligations and exemptions can vary and may be more onerous than the federal Act; as such, different considerations and safeguards may apply.
The Act applies to only records that are in the possession of Government Institutions, not information. Therefore, images viewed, but not copied or downloaded are not subject to ATIA disclosure (as noted above, emails are considered records subject to ATIA disclosure). An information sharing system that does not allow for copying or downloading of information, may be used to protect information, however, any notes related thereto may be subject to disclosure.